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Johnston-Forbes v. Matsunaga

Court of Appeals of Washington, Division 2

October 29, 2013

Cathy Johnston-Forbes, Appellant,
v.
Dawn Matsunaga, Respondent

Appeal from Clark Superior Court. Docket No: 09-2-02318-6. Date filed: 01/13/2012. Judge signing: Honorable Diane M Woolard.

Michael H. Bloom, for appellant.

Douglas F. Foley (of Douglas Foley & Associates PLLC ) and Vernon S. Finley, for respondent.

AUTHOR: J. Robin Hunt, J. We concur: Lisa Worswick, C.J., Bradley A. Maxa, J.

OPINION

Page 1261

Hunt, J.

[177 Wn.App. 403] ¶ 1 Cathy Johnston-Forbes appeals the jury's special verdict [1] finding that Dawn Matsunaga's negligence [177 Wn.App. 404] had not proximately caused Johnston-Forbes' injuries in a car accident. Johnston-Forbes argues that the trial court committed reversible error in denying her motion in limine to exclude defense expert Allan Tencer's testimony about the forces involved in this accident. Holding that the trial court did not abuse its discretion in allowing Tencer's limited testimony, we affirm.

FACTS

I. Car Accident

¶ 2 In August 2006, Dawn Matsunaga's vehicle struck at low speed the rear end of the stopped vehicle in which Cathy Johnston-Forbes was a passenger. Johnston-Forbes exited her vehicle, told Matsunaga that " everybody was fine," and walked 100 yards to a field while her husband waited with the car for police to arrive. 4 Verbatim Report of Proceedings (VRP) at 490. Johnston-Forbes did not experience any bruising from the impact; nor did she believe that she was injured. That evening, however, she experienced a headache and stiffness in her neck, for which she did not seek medical treatment.

¶ 3 Several weeks later, Johnston-Forbes visited the hospital complaining about lower back pain. During the following year she received periodic physical therapy treatments. A year after the collision she complained to her doctor that she was experiencing neck pain. Approximately four years after the accident, a December 2010 MRI (magnetic resonance imaging) revealed that Johnston-Forbes had a herniated disc in her lower neck.

II. Procedure

¶ 4 In the meantime, in May 2009, Johnston-Forbes sued Matsunaga for general and special damages arising from Matsunaga's alleged negligence in the August 2006 car accident. Matsunaga admitted that she had struck Johnston-Forbes' [177 Wn.App. 405] vehicle but denied that this collision had caused Johnston-Forbes' injuries.

¶ 5 Johnston-Forbes moved in limine to exclude the vehicle damage photographs [2] and the testimony of Allan Tencer, Matsunaga's expert witness. She argued that Tencer should not be allowed to testify, based on his lack of qualifications as a licensed engineer and the lack of a foundation for his testimony, because (1) he had viewed only photographs of Matsunaga's vehicle and had not physically examined it; (2) he had neither viewed photographs of nor examined Johnston-Forbes' vehicle; and (3) he failed to account for Johnston-Forbes' body position at the time of impact and how it had affected her injuries. Johnston-Forbes further argued

Page 1262

that Tencer's testimony and the photographs would be " speculative," would " mislead and confuse the jury," and would " unfairly prejudice [her]." Clerk's ...


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